IMPORTANT POINT
Dismissal of a teacher upheld due to unauthorized absence exceeding five years, leading to automatic cessation of service; appeal against dismissal deemed time-barred.

JUDGMENT :

[WP(C) Nos.5182/2019, 24809/2019]

These connected writ petitions are filed by the Corporate Manager of an Aided School and a Teacher, who was working in the said school, with respect to the employment of the Teacher, her subsequent suspension and her later dismissal from service.

2. For ease of reference, the facts, as is available, in W.P.(C) No.5182 of 2019 are adopted.

The petitioner is the Corporate Manager of an Aided School. The 5^th respondent herein was working as an Upper Primary School Teacher (UPST) in the said school. The dispute is essentially with respect to two spells of leave applied for by the petitioner. As regards the first spell – from 16.07.2003 to 12.11.2003 – for a period of 120 days, there is no dispute. The 5^th respondent sought for the afore leave for going abroad, and the said leave was also sanctioned. The petitioner contends that after the leave period, the 5^th respondent was to rejoin from 13.11.2003, and since the 5^th respondent did not rejoin, proceedings were taken by informing the Manager, as evidenced by Ext.P1 letter dated 17.11.2003. On 01.12.2003, the Manager sent Ext.P2 communication to the 5^th respondent at her address, as noticed in Ext.P2, and the same has been returned by the postal authorities with the endorsement ‘left India.’ The proceedings continued by way of sending a ‘memo of charges’, as evidenced by Ext.P3 again in the same address, which met with the same result as seen from the endorsements made by the postal authorities. The petitioner, in such circumstances, carried out a publication in the Deepika Malayalam Daily dated 04.02.2004, as evidenced by Ext.P4, followed by Ext.P5 memo of charges dated 20.02.2004, issued by the Manager, suspending the 5^th respondent from service. The afore period of suspension was permitted to be continued beyond the permissible period of 15 days pursuant to Ext.P6 proceedings dated 05.03.2004.

Later, as evidenced by Ext.P8 letter dated 06.05.2004, an enquiry was conducted by the District Educational Officer (DEO), wherein also the fact that the 5^th respondent was abroad, and the notices sent have been returned with the endorsements 'left India’ has been recorded. On the basis of the afore, it is found that the 5^th respondent was continuing on unauthorised absence from 13.11.2003, and hence the sanction to proceed under the provisions of Chapter XIV A of the Kerala Education Rules, 1959 (hereinafter referred to as ‘KER’), was extended to the Manager. On the basis of the afore sanction, Ext.P9 show cause notice dated 02.10.2004 was issued, which was again returned with the endorsement as already noticed, on account of which publication was carried out in the newspaper dated 31.10.2004, as evidenced by Ext.P10. Insofar as there was no response, the DEO permitted the petitioner to act accordingly, as evidenced by Ext.P13, and by Ext.P12 dated 23.02.2005, the 5^th respondent was dismissed from service.

3. It may, straight away be noticed that the proceedings under Chapter XIV A of the KER, as noticed earlier as regards the 5^th respondent herein, has come to an end by 23.02.2005, as seen from Ext.P12. The 5^th respondent, thereafter, comes to the picture only pursuant to Ext.P12 in W.P.(C) No.24809 of 2019, in the form of an appeal filed before the Director of Public Instruction, dated 16.01.2017. The afore stood transferred to the Government for consideration and the Government issued Ext.P14 dated 17.01.2019. By the order at Ext.P14, the Director of Public Instruction found that there was a violation of the principles of natural justice embodied under Rule 75 of Chapter XIV A of the KER, and hence setting aside the proceedings taken by the Manager against the petitioner leading to the dismissal from service, as noticed earlier. The 5^th respondent was directed to be reinstated in service by Ext.P14.

4. The petitioner – the Manager – has, in such circumstances, filed W.P.(C) No.5182 of 2019, challenging Ext.P14 issued by the Director of Public Instr